51
Neither of the petitions was granted and CJ Munir's judgment justified the act of
the Governor General. However, this was not the end of this episode, as the case
would be relied on again in 1958 in support of Ayub Khan's assertion of martial law
and abrogating the 1956 Constitution; in 1978 to legalise the military takeover of
General Zia ul Haq, and in 2000 justifying General Pervez Musharraf’s overthrow of
Nawaz Sharif’s Government.
As demonstrated at 3.4, both Virk and de Smith concluded that no such necessity
existed in this situation.
211
However, timing is of the essence in this case. Pakistan
was a newly formed state, which was struggling with devising its first constitution,
limited resources and perpetual pressure from the Indian right wing who were not
happy about the partition. Such political instability was only weakening the country
and increasing the risk of being taken over by India. Not that it could be foreseen
at the time, but during 1971, India took advantage of Pakistan's political crises and
aided East Pakistan to secede to form Bangladesh. It is therefore suggested that,
taking a legal realist approach, the very being of Pakistan was in danger and thus
reliance by the judiciary on the doctrine
of necessity was pragmatic, feasible,
inevitable and justified.
This act of the Governor General and its ratification by the judiciary set a precedent
for judicial endorsement of subsequent premature dissolutions. It is argued that,
since it was within the powers of the Governor General to dissolve the legislature,
the courts had limited scope to overturn the decision challenged through the
Maulvi
Tamizuddin case.
212
However, the judges in this case
relied on the doctrine of
necessity instead of adopting a purely constitutional stance. Taking a constitutional
stance would have ratified the act of the Governor General under Section 102 of the
Government of India Act 1935.
Although the judiciary may have seen circumstances at the time warranting
necessity, nonetheless, the reason for the dissolution
of the first legislature by
Governor General Ghulam Mohammad was a personal one. His self-interest was
based on his own objection to the constitution which the Assembly was about to
adopt.
213
Self-interest or not, it was nonetheless at his discretion under Section 102
211
Muhammad Virk, 'Doctrine of Necessity-Application in Pakistan- Cases
of Immense Importance-
A Critical Review' (2012) 2(2) International J. Soc. Sci. & Education 82.
212
Federation of Pakistan and Others vs Maulvi Tamizuddin Khan [1955] PLD 1955, FC 240.
213
Leslie Wolf-Phillips, 'Constitutional Legitimacy: A Study of the Doctrine of Necessity' (1979) 1(4)
Third World Quarterly, 98.
52
of the 1935 Act to proclaim an emergency and dissolve the legislature. It is clearly
contrary to the principle of separation of powers
to vest such absolute power
absolutely.
After and during the ruling in the
Maulvi Tamizuddin case and in the absence of a
constitution, the judiciary had no option but to either rely on the 1935 Act or make
a novel decision, and therefore the Governor
General Ghulam Muhammad
promulgated Emergency Ordinance IX 1995 giving himself the power to frame the
constitution.
This phase clearly does not demonstrate the key factors, because:
1. There were no reforms to uphold equal representation.
2. There were no instruments creating separation of powers or a checks and
balances system.
3. There were elements of self-interest, firstly vested in the Governor General in
the Pre-Pakistan arrangement in favour of the British Empire and later on
inherited by the Pakistani Governor General who was simply not in favour of
the constitution the assembly was about to pass.
214
Even if it is argued that a necessity did not exist, the Governor General had the
powers to dissolve the government and assume powers over the entire country and
that is exactly what he did when he gave the country its first own constitution in
1956.
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